HR professionals need to know the common law application in HR management. Every managers need to know this, too.
First of all, it is necessary to understand the meaning of common law.
This is law belonging to a group of laws developed by judges whenever they interpret existing written laws when deciding cases brought before them. Constant change in the law poses challenge to HR professionals.
A judge may sit alone or sit as a member of a panel of judges in superior court of laws. It is because of this that this type of laws are referred to as case laws. When deciding a case brought before him, a judge is bound to follow previous court decision where the surrounding circumstances are similar. Further to this, judges must follow the decision of a higher court.
If the case differs from previous cases, the judge can decide the case differently. They may not even follow the judgment of higher courts if cases differ substantially. This is how judges make law called "precedent."
This way of "making laws" does not find favor with many people particularly legislators. They argue that the power to make new laws belongs to them or to Parliament.
HR people are also placed in difficulty since they have to keep up with changes in the common law application to HR matters. This is the reason why there are legal officers recruited by organizations or legal firms appointed for this purpose.
Where did judge-made law originate?
Common law originated from England. Some of the countries that can trace their legal system to England include:
2. The United States
6. Canada (with exception)
8. Sri Lanka
9. South Africa
10. Hong Kong
13. New Zealand
16. Trinidad and Tobago
25. Guyana, and
These countries were once ruled by the British. Thus, the similarity in the law system. However, the present case law in some of these countries may differ a lot from those of the British. They had developed their own set of case law. Decided cases in English are mostly of persuasive authority only.
Common Law Application is Global
Some one third of the world's population live in common law jurisdiction. This huge 2.3 billion people means that it is inevitable that case law plays a big role in human resource management.
It is because of this that HR managers, HR specialists and HR people need to familiarize themselves with case laws applicable to HR matters. Updating themselves on the law is a continuous activity.
For example, in a dismissal case, those responsible need to check out applicable legislation on dismissal of employees as well as current case laws. This is to ensure that the dismissal is not wrong under the law. If you fail to do this, the organization may end up on the wrong side of the law.
Legislation can supercede case law unless there is no written law, that is, law passed by Parliament. However, the law court interprets the written law thereby making new law. This can happen in cases of dismissal, transfers, demotion and so on.
Case law can change very quickly. And decided cases are so numerous that HR people will find it impossible to keep up-to-date. It is difficult to determine "what the law is" in a given situation and at a certain date. It is advisable to seek advice from your in-house attorney and or an appointed legal firm.
It is necessary that corporate lawyers are well versed in case laws as well as legislation relating to the workplace such as those relating to labor laws, corporate laws and employment.
There are many situations where enacted law supercede the common law. In such a case, the common law can no longer apply unless the circumstances are different.
In one decided California case, it was upheld that an insurance agent was not an employee but an independent contractor as claimed under case law. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989). Thus, the plaintiff was not entitled to certain reimbursements or payments for which she had claimed. Here, enacted laws superceded the applicable common law.
Employment Terms and Conditions
Where an employment contract is not complete in its terms and conditions, some of these terms and conditions are implied either under legislation or the common law. It is necessary for HR people to keep up with changes to the law.
Consider the following:
Seek Professional Advice
It is accepted that laws relating to labor and employment are not easy. And as already stated, laws can change very fast as the law courts make new laws through interpretation of existing laws. This is one of the main reasons why organizations need legal professionals to help them navigate through existing laws.